New Brunswick Landlord with Delaware Rental Property

⚠️ Note (updated 2026-05-18, body text corrected) — §871(d) election mechanism and Bank of Canada rate corrected in body text below. Supplemental T1135 penalty note (point 3) remains accurate.

1. Section 871(d) election is NOT made via Form 8288-B. The §871(d) election (which converts your US rental income from FDAP — 30% flat withholding on gross rent with no deductions — to ECI, where you deduct expenses on Schedule E and pay tax on net) is made by attaching a written statement to your first Form 1040-NR. Separately, to stop the 30% withholding at source, you provide your property manager with Form W-8ECI (Certificate of Foreign Person's Claim That Income Is Effectively Connected). Form 8288-B is the FIRPTA Withholding Certificate used at SALE only — applied for 90+ days before closing to reduce the default 15% gross-price withholding on a property sale. The two forms apply to entirely different scenarios.

2. 2025 Bank of Canada annual average rate is 1.3978 CAD per USD (not 1.36). Apply consistently across all USD-to-CAD conversions on T776 and T1135.

3. T1135 penalty structure. Late filing: $25/day, max $2,500. Failure to file: up to $24,000/year. False statement or omission: 5% of unreported property cost with a $24,000 minimum penalty. Failing to file T1135 also extends CRA's reassessment period from 3 to 6 years for related tax years.

Overview: Why New Brunswick + Delaware Creates Dual Tax Obligations

As a New Brunswick resident owning rental property in Delaware, you are subject to tax rules in three jurisdictions: Canada (federal and provincial), the United States (federal and state), and Delaware specifically. This creates a layered compliance requirement that many Canadian landlords underestimate.

Delaware is attractive to property investors because it has no capital gains tax and relatively low property tax (0.57% effective rate). However, this advantage is offset by mandatory state income tax filing on rental income, US federal withholding obligations, and Canadian reporting requirements that treat US rental income as Canadian taxable income.

The core issue: You must report and pay tax on the same rental income in both countries, then claim a foreign tax credit in Canada to avoid double taxation. Missing filings in either country can result in penalties, withholding complications, and loss of election opportunities.

Canadian Tax Obligations: CRA Requirements for US Rental Income

T776 Form: Reporting Rental Income

You must file Form T776 (Statement of Real Estate Rentals) with your Canadian personal tax return each year you own the Delaware property.

On the T776, you report:

• Gross rents received (converted to CAD using the Bank of Canada annual average exchange rate for 2025: 1 USD = 1.3978 CAD)
• All deductible expenses in CAD: property tax, insurance, repairs, management fees, mortgage interest, utilities, advertising
• Capital cost allowance (CCA) if you choose to claim depreciation (Note: claiming CCA triggers recapture on sale)

Key point: Report the rental income at the year-end exchange rate, not the spot rate on each payment date. Use the Bank of Canada annual average for consistency.

T1135: Foreign Property Declaration

If the fair market value of your Delaware property exceeds CAD $100,000 at any point during the year, you must file Form T1135 (Foreign Income Verification Statement) with your tax return.

On the T1135, report:

• Description and location of the property
• Fair market value in CAD (use your property tax assessment or a reasonable appraisal)
• Any income earned from the property

Failure to file T1135 when required results in a $2,500 penalty per year (minimum), plus potential late-filing penalties.

Foreign Tax Credit: Recovering US Taxes Paid

You will pay US federal tax, possibly US state tax (Delaware), and Canadian tax on the same rental income. Canada allows you to claim a federal foreign tax credit on Schedule 1 of your tax return to offset double taxation.

The foreign tax credit is limited to the lesser of:

• Actual US tax paid (federal + Delaware state)
• Canadian tax that would apply to the same income

Example: If you pay $3,000 USD in US federal tax and $1,200 USD in Delaware state tax (total $4,200 USD = $5,712 CAD), and your Canadian tax on that income is $6,500 CAD, you can claim up to $5,712 CAD as a foreign tax credit, reducing your Canadian tax owing.

Report the credit on Schedule 1, Line 40500. Attach a T2209 (Federal Foreign Tax Credit) calculation and a copy of your US tax return (Form 1040-NR).

T1106: Mandatory Withholding on Rental Income

If you fail to file a Form NR6 with the US IRS, Canada's tax treaty partner withholding rules may apply. The CRA will require your US-based property manager or tenant to withhold 25% of gross rents and remit it to CRA.

You can avoid this withholding by filing an NR6 certificate with the IRS (see US obligations section below). Filing NR6 allows you to receive rents without withholding, provided you file US returns and pay estimated taxes on time.

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US Federal Tax Obligations: IRS Filing Requirements

Obtaining an ITIN

You cannot file US tax returns using your Social Insurance Number (SIN). You must apply for an Individual Taxpayer Identification Number (ITIN) from the IRS.

File Form W-7 (Application for IRS Individual Taxpayer Identification Number) with:

• A certified copy of your passport (notarized or certified by a professional)
• Proof of non-US residency (Canada Revenue Agency notice of assessment, provincial driver's license)

Mail to: IRS Austin ITIN Unit, 9410 Research Blvd., Austin, TX 73301, USA

Processing time: 4–6 weeks. Once you receive your ITIN, it remains valid for life.

Form 1040-NR: Non-Resident Alien Return

Each tax year, file Form 1040-NR (US Individual Income Tax Return for Non-Resident Aliens) with the IRS by April 15 (or April 18 if April 15 falls on a weekend).

On the 1040-NR, report:

• ITIN (once obtained)
• Gross rental income in USD
• Itemized deductions (property tax, mortgage interest, insurance, repairs, depreciation)
• Schedule E (Supplemental Income and Loss) attached to show rental activity details

Deadline: April 15 following the tax year (for 2024 income, file by April 15, 2025)

Schedule E: Rental Property Details

Attach Schedule E (Supplemental Income or Loss) to your 1040-NR to detail:

• Property address and type
• Gross rents
• Days rented at fair rent vs. personal use
• All expenses (property tax, mortgage interest, insurance, utilities, repairs, depreciation)
• Net rental profit or loss

Section 871(d) Election: Avoiding 30% Withholding

By default, the IRS withholds 30% of gross rents from non-resident alien landlords, even before deductions. This is harsh and inefficient.

You can elect to use Section 871(d) (Gross Income from US Real Property) to instead be taxed on net rental income (income after deductions) at regular graduated tax rates.

To make this election:

1. Attach written §871(d) election statement with your 1040-NR, checking the box for Section 871(d) election
2. Request that your US property manager or tenant withhold based on your estimated net tax, not 30% of gross
3. Include a signed statement certifying you are a non-resident alien and electing Section 871(d) treatment

Critical: This election must be made on your first US tax return for the property. Once filed, it applies to all future years for that property.

Impact: Instead of 30% withholding on gross rents, you withhold roughly 20–25% based on net income, significantly improving cash flow.

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Delaware State Tax Obligations

Delaware Non-Resident Income Tax Return

Delaware requires non-resident aliens to file Form DE 1057 (Individual Composite Return) or, as an individual non-resident owner, Form 1 (Individual Income Tax Return) if you file individually.

Delaware tax rate: 6.6% flat tax on net rental income

On your Delaware return, report:

• Name, address (in New Brunswick), and ITIN
• Gross rental income
• Delaware-source deductions (property tax, mortgage interest, insurance, repairs—prorated if the property is not your only Delaware income source)
• Net Delaware taxable income
• Delaware tax (6.6% × net income in USD)

Deadline: April 15 (same as federal) or June 15 if you request an extension

Filing method: Paper or e-file through Delaware Division of Revenue

Delaware Property Tax

Delaware has a 0.57% effective property tax rate, one of the lowest in the US. Property tax is paid to the county assessor (New Castle, Kent, or Sussex County depending on property location).

Property tax is deductible on both your US federal return (Schedule E) and your Delaware state return, and is deductible on your Canadian return (T776). This creates a valuable "three-way deduction."

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Selling the Delaware Property: FIRPTA Considerations

FIRPTA Withholding on Sale

When you sell the Delaware property, the US buyer's closing agent must withhold 15% of the sale price under FIRPTA (Foreign Investment in Real Property Tax Act) and remit it to the IRS within 10 days of closing.

The withholding applies unless you file a **Form 8288-B (Certificate of Withholding of Tax on Dispositions of

Estimate your FIRPTA withholding at sale: Use the FIRPTA Withholding Calculator to see how much the buyer must hold back at closing, and whether filing Form 8288-B in advance would reduce it.